Family Law Q&A （1）

Legislative framework

1.1Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children’s matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

China, like other continental jurisdictions, enacts its laws in statutes and codes. From January 1, 2021, China Civil Code, the first of its kind, took effective. Family laws are part of that code.

In judicial practice, the judicial interpretations by China Supreme Court of statutes are binding upon and are applied by courts in China.

China Ministry of Civil Affairs and its lower counterparts are in charge of administration of registration of marriage and divorce in China, and there are pertinent regulations promulgated by this CMCA.

1.2Which bilateral or multinational instruments have application in this regard in your jurisdiction?

Unfortunately, China has not been an active member to international family law conventions. On the other hand, China has signed some 38 bilateral treaties for judicial  with other jurisdictions under some of which civil judgments, including family law judgments, can be mutually recognized and enforced in the other jurisdictions. There are some jurisdictions among them that don’t recognize and enforce court judgments.

It should be a prerequisite step to check out the list when it comes to an international family case in China or otherwise involving China, to make sure pertinent family courts judgments can be finally enforced.

1.3Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

In China, the major government agency involved in the enforcement of family laws is China Ministry of Civil Affairs. Registration of marriages, divorces and child adoption are all within the ambits of CMCA powers. As a registration authority, their power are very much passive and only be activated upon application.

Courts are empowered to issue injunctions to prevent domestic violence.

1.4Can foreign judgments and orders be enforced in your jurisdiction and if so how?

It depends on what type of foreign judgments and orders are concerned.

Generally speaking, foreign court judgments on dissolution of valid marriage (or divorces itself) can be recognized and enforced in China provided that at least one party thereto is Chinese citizen. Other decisions in foreign judgments related to child custody and division of matrimonial properties are however not recognized and enforced in China.

There have been no laws or rules in China on recognition of foreign judgment on annulment of marriages. It is therefore our opinion that such foreign judgments cannot be recognized and enforced.

China does not have the legal separation regime, and thus foreign judgments or orders thereon cannot be recognized and enforced.

That said, Hong Kong Special Administered Region (HK SAR), as part of China but with distinctly different UK-based legal systems, has a closer relationship where a bilateral arrangement between China mainland and HK SAR was made on February 15, 2022. Under this arrangement, certain defined HK courts judgments and orders will be able to be recognized and enforced.

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